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35 Cards in this Set

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General Rule of Competency

Every person is competent to be a witness

When may a Judge excuse a witness?

A Court may excuse a witness IF the probative value of the witness testimony is outweighed by unfair prejudice

What are Dead Man Statutes? Do the Federal Rules of Evidence utilize them?

A Dead Man Statute precludes the admissibility of evidence of a transaction or conversation between someone that is now deceased and someone now living




Dead Man Statutes have been ABOLISHED under the Federal Rules of Evidence




ONLY where a state law governs and the state has a Dead Man Statute will the Federal Courts apply such rules

Witnesses are required to _____? (qualifications)

A Witness MUST have personal knowledge AND declare to testify truthfully by oath or affirmation "in a form calculated to awaken his conscience."




Expert witnesses do NOT have to have personal knowledge




A judge CANNOT permit a witness who refuses to take an oath or affirmation to testify

What are the qualifications for an Interpreter?

An Interpreter is qualified the same way as an expert witness and MUST take an oath or affirmation to what they are translating is a true

Is the presiding Judge competent to testify as a Witness?

NO. The Presiding Judge MAY NOT testify as a witness at trial. A party does not need to objection because the objection is automatic and Plain Error Rule will apply

Is a juror competent to testify?

NO. A juror MAY NOT testify as a witness before the jury in which he or she is a member

When is it inappropriate for a juror to testify about jury deliberations?

A juror MAY NOT testify (includes affidavits) as to the manner in which the jury reached its decision. This includes:


1. Any statements made during deliberations


2. Thought processes by which jurors reached a decision


3. Votes taken to reach a verdict

When MAY a juror testify?

A juror MAY testify when:


1. extraneous prejudicial information improperly brought to the juror's attention;


2. whether any outside influence was improperly brought to bear on any juror; OR


3. Clerical/Secretarial error (i.e. mistakes on verdict form)

Who may Impeach?

The credibility of a witness may be attacked by ANY party, including the party calling the witness

What is Collateral Matter?

A collateral matter is evidence SOLELY affecting the credibility of a witness.

What is the Collateral Matter Rule?

Extrinsic evidence on collateral matters is INADMISSIBLE to impeach.

How is the Collateral Matter Rule applied in practice?

While questioned about a collateral matter, the party cross-examining the witness is bound by the witness's answer to matters solely affecting credibility. The rule precludes the cross-examiner from calling other witnesses or producing documentary evidence to contradict the witness.

What are the 4 different methods of Impeachment?

1. Bias or Prejudice


2. Sensory defects


3. Prior Inconsistent Statement


4. Character Evidence

Describe Bias or Prejudice Impeachment

Bias or Prejudice is ALWAYS MATERIAL, and NEVER COLLATERAL. Thus the Collateral Matter Rule does NOT apply.




EX. personal relationships, business relationships, confidential informant, fee arrangements

Describe Sensory Defects

The inability to observe, communicate, or remember is ALWAYS RELEVANT, and NEVER COLLATERAL. Thus the Collateral Matter Rule does NOT apply.




Exception: Evidence of addiction to drugs or alcohol is generally NOT allowed UNLESS immediately connected with witness's credibility. BUT permitted to ask about drug/alcohol use

What are the 4 categories of character evidence used to Impeach?

1. Reputation or Opinion


2. Bad Acts


3. Felony convictions in general


4. Specific convictions of crimes involving dishonesty or false statement

When can a party impeach with reputation or opinion evidence?

A witness's character of UNTRUTHFULNESS is ALWAYS MATERIAL and may be attacked by reputation or opinion.




Either party may call a witness (character witness) to give reputation or opinion evidence.




NOTE: Remember Collateral Matter Rule, cannot use documentary evidence.

When is evidence of a witness's character for truthfulness admissible?

ONLY TO REHABILITATE, when a witness's character for truthfulness has been first attacked.




Thus can only be occur on re-direct if own witness or cross if hostile witness

Describe when questioning about Specific Acts of Untruthfulness is permissible?

On cross examination, inquiry into specific acts, which reflect on witness's truthfulness (or lack thereof) is ACCEPTABLE (i.e. fraud, perjury). BUT the Collateral Matter Rule applies and extrinsic evidence of such conduct cannot be introduced

When is Bad Acts Impeachment admissible?

Specific instances of the conduct of ANY testifying witness that are probative for their truthfulness are ADMISSIBLE for ATTACKING or SUPPORTING the witness's credibility. Requires:




1. A question


2. On cross-examination


3. Inquiring into prior unconvicted acts bearing on (un)truthfulness

What are some IMPROPER types of Bad Act Impeachment?

1. Use of drugs or alcohol


2. Failure to pay debts


3. Gambling


4. Prositution


5. Sexual misconduct

What are the limitations on Bad Acts Impeachment?

1. Questions must be probative of truthfulness


2. Questions must be asked in GOOD FAITH


3. Act cannot be too remote in time (i.e. 403 Balancing test)


4. Only questions of fact are allowed, NOT rumors or arrests

When is Impeachment through Prior Convictions applicable?

Applies to BOTH civil and criminal cases and applies to ALL witnesses including parties to the litigation

What are the two categories of Prior Conviction Impeachment?

Felonies, and crimes involving dishonesty or false statement

What is a felony and when is it permissible to impeach a witness?

A felony is an offense punishable by death or imprisonment in excess of 1 year




In criminal cases, evidence of a conviction MAY be admitted ONLY IF the Prosecution FIRST shows that the probative value outweighs its prejudical effect




In a civil case, evidence of a conviction MUST be admitted UNLESS the opponent shows that the prejudicial effect substantially outweighs the probative value




Subject to 403 Balancing test (probative value substantially outweighs unfair prejudice)

Crimes Involving Dishonesty or False Statement

Crimes involving dishonesty or false statement include BOTH felonies and misdemeanors.




These convictions are ADMISSIBLE as a matter of right, as long as they are less than or equal to 10 years old

What is the 10 Year rule?

Conviction more than 10 years old are INADMISSIBLE to impeach UNLESS the probative value substantially outweighs the prejudicial effect




Notice MUST also be given to the opponent

How do we measure a conviction under the 10 Year rule?

It is based on either:


1. the date of the conviction; OR


2. the date of release from confinement,


whichever is later (i.e. more recent)

Are Juvenile adjudications admissible to impeach?

Generally NO.




It is INADMISSIBLE for the accused if he testifies.




For all other witnesses, it is discretionary. It MAY be admissible IF but for the age, it would be admissible, AND admission is NECESSARY for determination of the issue of guilt or innocence.

How do we treat convictions under appeal?

It is STILL treated a conviction BUT evidence that the conviction is under appeal is also admissible

What happens to convictions that have been pardoned?

It is NOT admissible to impeach

Please state determine which is admissible to impeach: arrest records, guilty pleas, suppressed evidence, indictments, other charges

Guilty pleas and Suppressed Evidence only

Can you ask a Character Witness if his opinion of the Defendant would change if he knew the Defendant was guilty?

NOOOO

Religious Beliefs or Opinions

Evidence of a witness's religious beliefs are INADMISSIBLE to ENHANCE credibility or IMPEACH